The Blog of International Judicial Assistance | By Ted Folkman of Pierce Bainbridge

Belfast Project: Is A Petition For An En Banc Rehearing A Waste Of Time?

Posted on July 23, 2012

I previously opined that Moloney & McIntyre’s next move was likely to be a petition for a rehearing en banc, and M&M have confirmed my prediction, though they have not yet filed their petition. And so I took a look at the rules for en banc rehearings in the First Circuit. 1 What I found suggests that a petition for rehearing is likely a waste of time. 2

M&M’s appeal was decided by a panel of three judges, all of whom are in regular active service: Chief Judge Lynch and Judges Boudin and Toruella. The court has two other judges in regular active service: Judges Howard and Thompson. The court also has three senior circuit judges: Judges Selya, Stahl, and Lipez.

Under Local Rule 35.0(a), the decision whether to grant a petition to rehear a case en banc is made “solely by the circuit judges of this circuit who are in regular active service.” That is, only the five active judges will get to vote on whether the case should be reheard. A rehearing requires the vote of “a majority of the judges of this court in regular active service who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service.” So assuming no judge is disqualified, M&M would have to win the vote of at least one of the three judges on the panel to get a rehearing. Judge Toruella, who concurred in the decision but who was clearly unhappy about the breadth of the majority’s reasoning, is the obvious candidate. But Judge Toruella thought the outcome of the case was controlled by Supreme Court precedent, not by an erroneous earlier panel decision than an en banc court could correct. So presumably he would agree that the outcome should be the same even after a rehearing. So I think it unlikely Judge Toruella would vote for a rehearing.

But let’s assume that the court agrees to rehear the case en banc. Who participates in the second decision? “A court en banc consists solely of the circuit judges of this circuit in regular active service except that any senior circuit judge of this circuit shall be eligible to participate, at that judge’s election, in the circumstances specified in 28 U.S.C. § 46(c).” Under that statute, the senior circuit judges can elect to participate only in the review of a case in which they sat on the original panel. 3 So even on a rehearing en banc, it doesn’t seem possible for M&M to get the votes necessary to reverse the panel decision.

These procedural facts are just a consequence of the small size of the First Circuit bench. In fact, the First Circuit, which covers just a part of New England (Massachusetts, Maine, New Hampshire, and Rhode Island) and Puerto Rico, is the smallest court of appeals by far, with six authorized seats. The next smallest courts of appeals, the Seventh and Eight Circuits and the D.C. Circuit, each have 11 authorized seats. The largest court of appeals, the Ninth Circuit, has 29! The upshot is that in the First Circuit, where a case is decided by a panel of judges in regular active service, en banc review is unlikely to have much practical importance unless there is a dissent. 4

1 Comment

Today’s issue of Massachusetts Lawyers Weekly makes pretty much the same point I make in this post. In a front-page article called “Circuit Vacancy Creating Challenges for Mass. Attorneys,” Lisa Keen notes the delay in Senate consideration of William J. Kayatta Jr., whom President Obama has nominated to fill the sixth authorized seat on the court. She writes: “The vacancy could also have an impact on the prospects for en banc appeal. If a panel of three active circuit judges renders a unanimous vote, there’s essentially no chance of en banc review, because the votes of the other two active judges can’t change the result.” I don’t think the article is available online to non-subscribers, unfortunately.